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2014 DIGILAW 2399 (BOM)

Aloki v. Gajanan Lahanuji Idre

2014-12-04

A.S.CHANDURKAR

body2014
JUDGMENT A.S. Chandurkar, J. 1. This appeal under Section 100 of the Code of Civil Procedure has been filed by the plaintiffs who are aggrieved by the judgment of the first appellate Court allowing the appeal preferred by the original defendants and dismissing the suit filed by the plaintiffs. 2. One Lahanu Idre was the common ancestor who was married with one Sitabai. From said wedlock they had three sons, Anandrao (plaintiff No. 1), Pandhari, son of Nathu their second son (plaintiff No. 2) and Gajanan-defendant No. 1. According to plaintiffs, their father was having agricultural land and house property. The ancestral property was partitioned after the death of Lahanu in the year 1957. As per said partition, field Survey Nos. 94/6 and 93/5 (new 482) went to the share of defendant no. 1. Field Survey No. 94/7 (new 485) went to the share of Nathu-the father of plaintiff no.2 and field Survey Nos. 94/3 and 93/3 (new 484) went to the share of plaintiff No. 1. The defendant no.1 sold field Survey No. 482 for consideration of Rs. 66,500/- on 27.02.1996 to the defendant no. 2. According to plaintiffs, they had preferential right to purchase said field bearing Survey No. 482. Hence, on the basis of said right of pre-emption the plaintiffs issued notice dated 03.10.1996 to the defendants. Thereafter present suit for declaration of right of pre-emption and mandatory injunction came to be filed. 3. The defendants in their written statement took the stand that the plaintiffs had no right of pre-emption to purchase aforesaid suit field. It was further pleaded that the plaintiffs were not ready and willing to purchase said property and hence they were not entitled to any relief what so ever. As the defendant no.1 was the absolute owner of the suit property, he was legally entitled to sell the same to the defendant no. 2. 4. The trial Court after considering the evidence on record held that the plaintiffs had proved that the defendant no. 1 had sold the suit property to defendant no.2 without giving any notice. It was further held that the plaintiffs had proved that they were ready and willing to purchase aforesaid property. On that basis, the trial Court decreed the suit by holding that the plaintiffs had preferential right to purchase the same and hence directed the defendant no. 1 had sold the suit property to defendant no.2 without giving any notice. It was further held that the plaintiffs had proved that they were ready and willing to purchase aforesaid property. On that basis, the trial Court decreed the suit by holding that the plaintiffs had preferential right to purchase the same and hence directed the defendant no. 2 to accept the amount of sale consideration and execute sale deed in favour of plaintiff no. 2. 5. The first appellate Court while considering the appeal filed by the original defendants held that the plaintiffs had no preferential right to purchase the suit property. It further held that the grant of relief in favour of plaintiff no.2 was totally unjustifiable. It, therefore, allowed the appeal and set aside the decree passed by the trial Court. 6. While admitting the second appeal the following substantial question of law was framed: As to whether under the provisions of Section 22 of Hindu Succession Act, the plaintiffs were entitled to have preferential right to purchase the suit land and whether they had complied with the provisions of Section 22 of the said Act? 7. Shri C. M. Samarth, learned counsel appearing for the appellants submitted that the first appellate Court erred in allowing the appeal filed by the original defendants. He submitted that under Section 22 of the Hindu Succession Act, 1956 (for short the said Act) the plaintiffs had preferential right to purchase aforesaid property. The defendant no.1 however without making any offer and without disclosing his intention sold the same to the defendant no.2. Relying upon the decision in the case of Ganesh Chandra Pradhan Vs. Rukmani Mohanty and others AIR 1971 Orissa 65, it was submitted that the plaintiffs being co-heirs were entitled to be offered aforesaid land by the defendant no.1. Reliance was also placed on the judgment of learned Single Judge in Bharat Machindra Parekar and another Vs. Anjanabai w/o Babarao Thaware and another 2007(6) Maharashtra Law Journal 706 to submit that even if the defendant no. 1 had executed sale deed, the right of pre-emption was not lost. He submitted that under the provisions of Section 22(1) of the said Act, cause of action accrued to the plaintiffs and hence the first appellate Court was not justified in dismissing the suit while allowing the appeal. 8. 1 had executed sale deed, the right of pre-emption was not lost. He submitted that under the provisions of Section 22(1) of the said Act, cause of action accrued to the plaintiffs and hence the first appellate Court was not justified in dismissing the suit while allowing the appeal. 8. Shri R. Maheshwari, the learned counsel appearing for the respondents supported the impugned judgment. He submitted that it was the case of the plaintiffs that pursuant to the partition between the brothers, field Survey No. 482 had been allotted to the defendant no.1 and hence he was competent to alienate the same. He submitted that provisions of Section 22 of the said Act were not attracted in the facts of the present case. He relied upon the judgment of Chhattisgarh in the case of Ghanshyam Vs. Sanghmitra Datta and Another decided on 28.02.2011 in this regard. He also relied upon the decision of the Orissa High Court in Bhagirathi Chhatoi Vs. Adikanda Chhatoi and others AIR 1988 Orissa 285 and Dwijabrata Das and others Vs. Debabrata Das and another AIR 1994 Gouhati 88. 9. The short issue therefore that requires determination is whether the plaintiffs had a preferential right under the provisions of Section 22(1) of the said Act to purchase the suit property. As per the averments made in the plaint, it was the specific case of the plaintiffs that till the year 1957, all the brothers were joint in mess and estate. After partition was effected in the year 1957, field Survey No. 482 went to the share of defendant no. 2, field Survey No. 483 went to the share of plaintiff No. 1 and field Survey No. 485 went to the share of plaintiff No. 2. In para 2 of the plaint it was pleaded that besides aforesaid properties, other fields and house properties were also partitioned. It is not in dispute that field Survey No. 482 that was allotted to the defendant no.1 in aforesaid partition was sold by him to the defendant no. 2 on 27.02.1996. 10. In para 2 of the plaint it was pleaded that besides aforesaid properties, other fields and house properties were also partitioned. It is not in dispute that field Survey No. 482 that was allotted to the defendant no.1 in aforesaid partition was sold by him to the defendant no. 2 on 27.02.1996. 10. Section 22(1) of the said Act on the basis of which the plaintiffs claim relief reads thus: "Where, after the commencement of this Act, an interest in any immovable property of an intestate, or in any business carried on by him or her, whether solely or in conjunction with others, devolves upon two or more heirs specified in class I of the Schedule, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred." From the aforesaid provisions it is clear that when interest in any immovable property of an intestate devolves upon two or more heirs specified in Clause I of the Schedule and one such heir proposes to transfer his or her interest in the property, then the other heirs would have preferential right to acquire interest in the immovable property proposed to be transferred. Thus, the contingency as stipulated under Section 22(1) of the said Act is devolution of interest in immovable property of an intestate on two or more heirs specified in Clause I of the Schedule. The term "intestate" has been defined by Section 3(g) of the said Act and same reads as under: "intestate" -a person is deemed to die intestate in respect of property of which he or she has not made a testamentary disposition capable of taking effect;". It is, therefore, clear that for the purposes of claiming preferential right under Section 22(1) of the said Act, the occasion for exercising such right would arise only on devolution of interest in property of an intestate on the legal heirs and one of them proposing to transfer his interest so acquired. 11. It would therefore be necessary to examine whether the requirements of Section 22(1) of the said Act stand satisfied in the present case. As stated above, it was the specific case of the plaintiffs that pursuant to partition in the year 1957 field Survey No. 482 was allotted to defendant no.1. 11. It would therefore be necessary to examine whether the requirements of Section 22(1) of the said Act stand satisfied in the present case. As stated above, it was the specific case of the plaintiffs that pursuant to partition in the year 1957 field Survey No. 482 was allotted to defendant no.1. It therefore became his separate property by virtue of aforesaid partition. Both the plaintiffs had also been allotted different properties in aforesaid partition. It is not the case that on account of devolution of interest in immovable property of an intestate, a right had accrued to the plaintiffs. The entire claim for preferential right is with regard to the property allotted to the defendant no. 1 in partition. It is, therefore obvious that the aforesaid requirement of Section 22(1) of the said Act of interest of an intestate devolving is not at all satisfied. 12. In Ghanshyam (supra) it was observed that on partition taking place between the parties, provisions of Section 22 of the said Act would not apply. Similar view has been expressed in Bhagirathi Chhatoi (supra). 13. As regards the decision relied upon by the learned counsel for the appellants in Bharat Machindra Parekar (supra) the question which arises in the present case did not fall for determination therein. It was held that even if the transfer was complete, the right of pre-emption under Section 22(1) of the said Act was not obliterated. Similarly, the decision in the case of Ganesh Chandra Pradhan (supra) also does not decide the question that arises in the present case. 14. The first appellate Court while considering the defendants appeal noted the fact of partition and hence found that the plaintiffs were not entitled to any relief of pre-emption what so ever. On proper consideration of aforesaid provisions and the law laid down in that regard, it cannot be said that the first appellate Court erred in dismissing the suit of the plaintiffs. 15. In view of aforesaid, the substantial question of law as framed is answered by holding that the plaintiffs were not entitled to any preferential right of purchasing the suit property. In view of said answer there is no option but to dismiss the second appeal. The same is accordingly dismissed with no order as to costs.